Moran v. Kansas City Rys. Co.

• Citation: 232 S.W. 1111
• Decision Date: 27 June 1921
• Docket Number: No. 14049.,14049.
• Parties: MORAN v. KANSAS CITY RYS. CO.
• Court: Court of Appeal of Missouri (US)

232 S.W. 1111

MORAN v. KANSAS CITY RYS. CO.

No. 14049.

(Kansas City Court of Appeals. Missouri.

June 27, 1921.

Rehearing Denied July 7, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Clarence Moran by James J. Shepard, his curator and guardian, against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., E. E. Ball, of Kansas City, Mo., and L. T. Dryden, of Independence, for appellant.

C. W. Prince, E. C. Hamilton, E. A. Harris, and Jas. N. Beery, all of Kansas City, Mo., for respondent.

TRIMBLE, P. J.

Plaintiff, a boy in his fourteenth year, was a passenger standing in the front vestibule of one of defendant's street cars in readiness to alight therefrom the moment it reached his destination, which it was then nearing. Before such point was reached, however, the street car collided with a laundry wagon in front of the street car and proceeding north in the same direction the car was going. Through a next friend, plaintiff instituted this action for damages alleged to have been sustained thereby, and recovered judgment for $3,500, to reverse which the defendant has appealed.

The incident occurred on January 9, 1919, somewhere near 7 o'clock in the morning, and the boy was on the car going to his work. A heavy snow had fallen, and the defendant's snow plow or sweeper had cleared the defendant's track of snow, but the snow thus cleared was left banked in the street at the side of the track along with the snow that had fallen there. The snow thus existing between the track and the curb, after thawing partially, had again frozen, so that the banked snow along the track had become packed, hard, and icy.

Holmes street runs north and south and is intersected by Twenty-Fourth and Twenty-Third streets, running east and west, Twenty-Third being north of and parallel to Twenty-Fourth. The street car was on Holmes street going north, as heretofore stated. Before it reached Twenty-Fourth street, a horse-drawn, covered wagon, loaded with towels and driven by one Stephens, drove west on Twenty-Fourth street to Holmes and there turned north on Holmes, and the street car overtook and struck the laundry wagon at some point between 120 and 150 feet north of the intersection at Twenty-Fourth and Holmes.

The litigants are in a sharp dispute as to the way in which the collision occurred. There is no dispute over the fact that there was a collision between the two. But the plaintiff contends that the laundry wagon was on the street car track all the way from the time it turned north at the intersection of Twenty-Fourth and Holmes until it was struck by the car at the above-named point 120 to 150 feet north of said intersection.

The defendant's evidence, however, Is that the wagon was "in the clear"— that is, it was in the street between the east rail and the curb, going north—and that no part of the wagon was on the track or in danger of being struck by the car, but that, when the street car was so close that it was too late to stop, the hind wheels of the wagon struck a rut in the icy, hard snow, which rut led near to the east rail causing the rear of the wagon to suddenly swerve toward and into the danger zone, and the corner of the wagon the rear left-hand corner, came into contact with the right-hand corner, the northeast front corner, of the car. Of course, if this was the way it occurred, the motorman was not guilty of negligence unless perchance the circumstances were such that the reasonable likelihood of the wagon swerving into danger was, or should have been, known to him long enough beforehand, so as to require him, in the exercise of ordinary care, to avoid a collision and give him reasonable time to do so.

It is for these reasons that we cannot uphold defendant's contention that the "physical facts" show that the collision occurred in the way defendant's evidence says it did. Those physical facts are the injuries done to the wagon and to the car. Defendant contends that they show that the front end of the car did not strike the rear end of the wagon, but that the side of the wagon was struck by the front part of the side of the car, and that therefore this proves that the collision occurred in the way defendant says it did. Conceding, for the sake of the argument, that the damage to the two vehicles does show that the point of impact between them was on their sides, this does not conclusively relieve the motorman of all imputation of negligence, as we will endeavor to show in the following statement of the evidence.

According to the evidence in plaintiff's behalf, given by Stephens, the driver of the wagon, after he had driven on the street railway track north from the intersection at Twenty-Fourth street, a distance of 40 or 50 feet, he twice tried to get off the track, but each time the ridge or bank of snow to the right of the east rail caused his wheels to slide back upon the track. He continued to go north as he was thus attempting to get off the track, and, while his right wheels would get off the track, his left wheels never did, so that during all of the time he was traveling the 120 to 150 feet his wagon was on the track or where a street car, if it overtook the wagon would strike it. As stated, when the wagon was from 120 to 150 feet north of the intersection, the car did strike it. The wagon had a covered body, was very strongly built, and from the seat to the rear end was filled "solid full" of towels, 2,000 of them in bunches of 50 each, thus making a solid mass between the back of the seat and the rear of the wagon. According to the driver, the street car "hit the west side of the wagon," and the collision "tore the west side of the wagon body and top and door off in one piece," and drove the mass of towels against the back of the seat whereon the driver sat, catapulting him over the dashboard. On cross-examination it was disclosed that the door torn off was the west one the two doors in the rear end, and that said west door went along with the west side and top of the body, all being torn off in one piece. The portion of the street car that was injured appears to have been at the northeast corner and side of the car. The cross-examination of a police officer on the car, who was plaintiff's witness, revealed that the glass in the door of the vestibule, serving as an exit for passengers, which was at the front part of the car, but on the side thereof, was broken out, as was also a small panel about 8 inches wide just in front of the door, which was also on the side of the car, but came right up to the corner thereof, and a window just back of said door was also broken out, and broken glass was scattered all over the car. However, on the redirect examination by plaintiff of this witness, this was elicited:

"Q. You said that the glass in the door was broken, and this door runs up to the north end of the car doesn't it, on the east side? A. Yes, sir. (Here an objection was made by defendant that the question was leading, but the objection was overruled on the ground that the objection came too late.)"

Then plaintiff's counsel asked:

"Q. Where is the door? A. It is right up against the front end of it.

"Q. What else was broken besides the panel in the door ? A. That little panel, the glass on the side of the door in front of the door right on the corner of the car.

"Q. That is what part of the car? A. The front end of the car, on the north end of the car.

"Q. Looking through that pane, what direction would you be looking? A. Looking north.

"Q. Looking north? A. Yes, sir."

Now, it would seem from the foregoing re...